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May 24, 2006

they've gotta be joking

Don Herzog: May 24, 2006

Late-breaking news flash, dateline 5 January 1642 (no, that's not a typo), the Journal of the House of Lords:

A Message was brought from the House of Commons, by Mr. Nathaniel Fynes:

Message from the H. C. about the King's coming to their House, to demand some Members.

1. To acquaint their Lordships, that Yesterday the King came to the Door of the House of Commons with armed Men, and came into their House in Person when the House sat, and demanded some of their Members, which they conceive is a high and great Breach of the Privileges of Parliament; therefore they thought it fit to give their Lordships Notice of it, as a Breach of Privilege, for it may concern this House likewise.

The hapless Charles I had hoped to arrest some of his leading parliamentary opponents for treason; civil war would break out later that year.  This quaint episode was tucked away in some cobwebbed corner of my brain.  Who would have thought today's Congress could make it surface?

But yes, Dennis Hastert and Nancy Pelosi have come out swinging — "The Justice Department must immediately return the papers it unconstitutionally seized" — after the FBI searched Rep. William Jefferson's office.  (Jefferson apparently spurned a subpoena last year.)

What's the alleged constitutional obstacle?  Why, Article I, sec. 6, defining privileges for senators and representatives:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

I wish our inestimable Congressmen would stop hyperventilating.  Jefferson wasn't arrested.  He hasn't been hauled into court, or even "any other Place," to answer for anything he said on the floor of the House.  More important, I can't imagine a halfway-decent argument that we have to make his office an FBI-free zone in order to safeguard the privileges he actually enjoys.

You bet, the Bush administration has been high-handed about executive powers.  And I'd be happy to entertain arguments that it was a dumb policy call to send the FBI in.  But Bush really isn't Charles I, and Bush and Congress will not in fact be squaring off in civil war later this year.

I used to think, okay, this time American politics has hit rock bottom.  I've stopped thinking it.  Now I'm with Puck:

Lord, what fools these mortals be!


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Posted by: Derek Bowman

What's sad is that this seems to be indicative of the understanding our government currently has of the 'separation of powers.' The White House has repeatedly insisted that it is immune from various forms of Congressional oversight, that it does not have to answer questions from Congress unless it decides to, and that when it does answer those questions it will do so on its own terms. Now these Congressmen are invoking the same privilege against investigation by agents of the executive branch.

So instead of the 'separation of powers' serving as a tool to allow the branches of government to keep one another in check, it is invoked as a barrier to such checks.

Posted by: Derek Bowman | May 25, 2006 12:30:19 PM

Posted by: johnt

I doubt the comparison of the administration to congress is analogous. The first thing that comes to my mind are the disputes over intelligence gathering. Given that this is a specific power of the executive there are at least grounds for not having an administrtion spill it's information in full before congress.
Despite the near hysterical furor over NSA it should be informative that General Haydn's nomination sailed thru, a hint as to the mock seriousness of this "threat to civil liberties".
The Jefferson/Hastert/Pelosi thing on the other hand doesn't have a constitutional leg to stand on. Which didn't stop Denny from making a bloody fool of himself.

Posted by: johnt | May 29, 2006 11:18:32 AM

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